As the Consumer Protection from Unfair Trading Regulations 2008 came into force there is no doubt that consumers are given greater protection in terms of misleading advertising and aggressive selling techniques, whilst the burden ultimately falls on traders.

The rather cumbersomely titled Consumer Protection from Unfair Trading Regulations 2008 came into force on 26 May 2008, implementing the Unfair Commercial Practices Directive 2005/29. These regulations prohibit unfair commercial practices, protecting consumers from unfair contracts, misleading actions or omissions and aggressive commercial practices. In the event of an offence being committed the penalty can consist of a fine or a possible prison sentence of up to two years.

Change in this area of law has been long awaited, and it is likely to be welcomed by most as it widens the scope of consumer protection and clamps down on unscrupulous traders. Moreover, by replacing much of the legislation previously in place, such as provisions in the Consumer Protection Act 1987 and the Trade Descriptions Act 1968 the aim of the regulations is to clarify and streamline the law in this area. One of the most significant aspects of this legislation is Schedule 1 as it identifies 31 commercial practices which are to be considered unfair in all circumstances. These include falsely stating that a product will only be available for a very limited time in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice (practice 7), and claiming that the trader is about to cease trading or move premises when it is not (practice 15). Of specific interest to ACID members perhaps, the regulations also provide that it is unfair to promote a product similar to a product made by a particular manufacturer in such a way as to deliberately mislead the consumer into believing that the product is made by that same manufacturer when in fact it is not (practice 13).The provisions are intended to provide generic rules for traders so that they do not trade unfairly. Transgressions of the regulations can be reported to Trading Standards, whose duty it is to enforce the regulations.In the short term uncertainty may arise in relation to the regulations, particularly in terms of the legality of different sale offers. Case law prior to the regulations is unlikely to have much relevance now, although European case law concerning the interpretation of the directive may be of use.One of the main objectives behind the legislation was to simplify consumer rights and bring the United Kingdom in line with other Member States in the EU who already have unfair trading legislation. Consumers will continue to be protected from misleading actions, omissions and situations where they are subjected to aggressive commercial practices. For businesses this legislation may mean a change to their working practices and greater scrutiny of what they say and omit to say and all businesses need to be aware of the changes to the law and alive to their implications. In cases where an offence is committed due to the default of another or a genuine mistake, where precautions have been taken to avoid such instances the defence of due diligence may be available to lessen the harshness of the regulations. Sarah Birkbeck

Sarah Birkbeck is a lawyer with DMH Stallard

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